Opinion
January 4, 1911.
James McPhillips and Nash Rockwood [ L.B. McKelvey of counsel], for the appellant.
Edward R. O'Malley, Attorney-General [ Wilber W. Chambers, Deputy, of counsel], for the respondent.
My conclusions in this case, briefly stated, are as follows:
First. The appropriation for which compensation is asked was not of the stone quarry but of the right of way to the Delaware and Hudson railroad, involving the destruction of certain structures thereupon. The right of way from the quarry to the Delaware and Hudson railroad crosses Wood creek, about fifteen feet in width, by a bridge, which in no way has interfered with the navigation of Wood creek; in fact navigation upon Wood creek has been long abandoned. The gravity road upon this right of way is deemed of great value, without which the stone could not be marketed at any substantial profit. The barge canal is to be seventy-five feet in width. Even if permitted by the State to bridge the canal the cost would be prohibitive. So that if the State is liable for this injury to claimant the damage is substantial.
But Wood creek is a public highway. By the "Artillery Patent," through which plaintiff claims, these lands were conveyed, "excepting the said Wood Creek, which is reserved as a common highway for the benefit of the public."
Assume first for the argument that the State has only an easement for a public highway in Wood creek.
There can be no claim for land taken, as that claim belongs to the owner or lessor. The major item of damage claimed is for making impracticable this gravity road by widening of the public waterway, so that it cannot be economically bridged. For this I am clear the claimant has no remedy. That the State has the right to improve its highways and deepen or widen its public streams is within recognized authority. In Lewis on Eminent Domain (§§ 69, 71) it is held that the rights of riparian proprietors upon navigable streams were subject to the paramount right of the public to use and improve the stream as such highway, and subject also to the right of the public to improve the stream for navigation. In Mills on Eminent Domain (2d ed. § 80) it is held that navigable rivers may be altered, deepened and their channels changed, and damages resulting from such an improvement are not properly the subject of compensation. The public have a right to make use of the river as a natural highway, and if the riparian owner is injured by such use he is without remedy. In Nichols on Eminent Domain (§ 166) it is held that the public right of navigation is paramount upon a private navigable stream, and is always subject to the servitude of navigation by the public and to the right of the government to construct works therein in aid of navigation. If this stream had at all times been so shallow that the claimant's teams could have forded it with loads the State clearly could have improved and deepened it without compensating the claimant for the extra expense necessitated for bridging or ferrying. So, also, the State may improve and widen the stream without compensation for the extra expense caused the claimant in crossing. No adjoining owner has a vested right in a public stream as he finds it. His rights are always subject to the right of the State to improve the stream for navigation.
It is insisted by the claimant, however, that this is not an improvement of Wood creek, but a construction of a new artificial water highway, the control of which is entirely reserved to the State. That this barge canal is a public highway is unquestioned. In its construction through the territory in question it follows the general line of Wood creek, which has for many years been a public highway. It cannot matter that in order to straighten this highway the bed of the canal does not always follow the bed of Wood creek. If it had followed the exact windings of Wood creek, there could then have been no question that it was an adoption and improvement of a highway already existing. Its right to the construction and improvement of a water highway along the general line of the creek, however, is not in any way impaired by such deviations as are necessary to straighten and improve the highway.
Again, claimant insists that this is not the improvement of a navigable stream, because it is an artificial waterway under control of the State, in which the adjoining landowners have not the rights they possess in a navigable stream. But no damage is claimed for the depriving of claimant of any rights to navigation. The barge canal is a public waterway. The fact that the use thereof is under special regulation does not alter the nature of the improvement or make it any the less such a public improvement as is within the authority of the State to make.
As to the claimed injury by making impracticable the gravity road, the good or bad faith of the claimant is probably not material. This gravity road is a valuable adjunct to the property itself, and it cannot matter to the State whether payment therefor, if liable, be made to the lessor or lessee.
Second. Again, upon the assumption that the State only has a right of way in Wood creek, the claimant had the clear right to construct its right of way and bridge it, provided it did not impair its usefulness as a public highway. ( Chenango Bridge Co. v. Page, 83 N.Y. 185.) Whether or not the bridge has yet been taken down the plan of the State involves its destruction and the destruction of part of the roadbed, for which the claimant is entitled to damages if the structures were placed thereon in good faith. If, however, the structures were placed upon the premises in bad faith for the purpose of enlarging its own claims and enhancing the State's damages, claimant merits no compensation. But there is no finding of bad faith. The lessee undoubtedly knew where was the contemplated line of the new canal, but that alone is not sufficient to defeat their claims for damages. ( Forster v. Scott, 136 N.Y. 577; Matter of Mayor, 24 App. Div. 7, 10.) Bad faith must be found as a fact.
Upon the assumption, therefore, that the State has only a right of way in Wood creek the judgment would have to be reversed and a new trial ordered that the court may assess the claimant's damage for the destruction of the structures constituting the bridge and its approaches.
Third. In this discussion so far I have assumed for the argument that the State only has an easement in Wood creek for the use of the public. If the State owns the bed of the stream a different question is presented. In that case no adjoining proprietor has the right to bridge the stream without legislative permission. ( Fort Plain Bridge Co. v. Smith, 30 N.Y. 44.) No such permission has ever been given either the claimant or its lessor. The bridging of the creek without such permission was a trespass, and the State is not liable to compensate the claimant either for the bridge destroyed or for the destruction of the roadway constituting the approaches to the bridge. It may be where piers and docks are built by adjoining proprietors to facilitate access to a navigable stream that their destruction even for the improvement of the stream entitles the owners to compensation. But these structures were not built to facilitate access to the stream. They were built to cross the stream without the required permission, and for their destruction in the making of this public improvement the claimant has no equitable claim for compensation.
Fourth. That the State does own the bed of the stream seems to me the necessary construction of the "Artillery Patent." From the lands granted by that patent Wood creek has been explicitly excepted. It cannot matter for what purpose the exception is made. It is here agreed that the State now owns whatever did not pass by the "Artillery Patent." In Lewis Blue Point Oyster C. Co. v. Briggs ( 198 N.Y. 287) it is held: "In patents from a sovereign to subject the rule of construction which controls deeds between individuals is reversed and the terms are taken most strongly against the grantee, because the public interest is involved." Under this rule of construction it can hardly be doubted that under this patent the title to the bed of Wood creek remains in the State.
The judgment should, therefore, be affirmed, with costs.
All concurred; KELLOGG, J., in memorandum.
At the time of the original patent, 1764, and for many years before, Wood creek was used as a passageway for canoes and like craft from Lake Champlain to the Hudson river. This included a carry from near Fort Ann to Fort Edward, about eleven miles. Within the knowledge of men now living, the creek has not been used for any such purpose, and is an ordinary creek from seven to fifteen feet wide, from six inches to two or three feet deep, the water of which runs within banks two or three feet in height, and it has not been used as a public highway or for boating.
The patent, in terms, includes and conveys Wood creek, and there would be no doubt that the title was in the grantee except for the reservation, which provides "excepting the said Wood Creek, which is reserved as a common highway for the benefit of the public," and later in the patent it is recited that it grants unto the patentee the premises before described, and every part and parcel thereof, except it reserved out of said grant to the King, his heirs and successors, the mines and minerals, "And also except Wood Creek for the uses above mentioned." I think the latter clause makes emphatic the extent of the reservation, and shows that the clear intention of the parties was that the use of Wood creek was reserved for the purposes mentioned, and that the title to the bed of the creek was not reserved, but it passed to the patentee subject to the right of the public to use the creek as a common highway. And this right to use the creek must be interpreted with reference to the use theretofore and then existing, and cannot justify the filling up and annihilation of Wood creek, the turning of the waters thereof into a canal which is supplied with water from other sources, and is seventy-five feet in width, twelve feet in depth and intended for the accommodation of boats and barges propelled by steam. This latter is a use which never was intended, and the volume of water flowing through the new canal is so out of proportion to that of the little stream winding through the land that it cannot be justified by reason of the burden cast upon the land by the reservation, but is appropriating the land for another and distinct use. The creek itself was very crooked; the canal is straight; and at the place in question the original creek was made a spoil bank and filled with excavations from the canal, and is about seventy-five feet distant from the canal itself. The building of the canal cannot be fairly considered an improvement of the original waterway within the terms of the reservation, but is a separate, distinct appropriation of land for canal purposes. I think that under the terms of the patent the bed of Wood creek became a part of the grant and passed to the patentee, subject to the burden of the public use in substantially the manner that it had been theretofore and was then used. We need not say that the substitution of steam and motor boats in place of the canoe would interfere with the rights of the public in using the creek as a common highway provided it could properly be excavated within about the fair limits of the creek as it formerly was. I think, therefore, the claimant had the right to build the bridge or trestle across Wood creek.
The State very properly did not assume to exercise the rights which it is there exercising on the theory that it was improving Wood creek, but proceeded upon the theory of a separate condemnation of the land for canal purposes, which course was the only one available to it, and its acts can be justified on no other basis.
The relator, therefore, by the condemnation is substantially deprived of the use of the bridge and trestle, and is entitled to such reasonable damage as it has fairly sustained thereby.
After the State had taken the steps preliminary to a condemnation of the property for the barge canal, and had marked out the line of the canal preparatory to the condemnation, which action was authorized by the statute enacted shortly before that time, the respondent takes a lease of an unused quarry and, in advance of the actual condemnation, builds the bridge and trestle and begins to work the quarry. The findings show facts fairly charging it with knowledge that the barge canal would run between the quarry that it was leasing and the railroad track. Notwithstanding this knowledge it took the lease and built the trestle. It has suffered no loss that was not directly in view when it took the lease and constructed the trestle, and its lease and improvements were entered upon subject to the work which it knew was imminent. An injury does not come to the willing, and the relator is losing nothing by the barge canal, the loss of which was not fully known and discounted in advance, and it has voluntarily assumed the position in which it finds itself. The Court of Claims has awarded it $1,000 damages for an interference with its rights. Its right of way on either side of Wood creek has been interfered with and I think the award ample. I, therefore, concur in the result.
Judgment unanimously affirmed, with costs.